04-ORD-188 | KOGC

Opinion

Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether the University of Kentucky Police Department properly relied on KRS 61.878(1)(a), (i), (h), and (l), as well as KRS 17.150(2), in partially denying Kentucky Kernel Editor-in-Chief Emily Hagedorn's August 31, 2004, request for eight incident reports identified by case number. For the reasons that follow, we find that UKPD failed to meet its statutory burden of proof in partially denying Ms. Hagedorn's request on these bases.

In a response dated September 3, 2004, Official Custodian of Records Frank Butler provided Ms. Hagedorn with copies of the first page of the eight incident reports. Mr. Butler indicated that the complainant's home address, telephone number, and date of birth were redacted, pursuant to KRS 61.878(1)(a), on each of the eight reports and that the complainants' names and signatures were also redacted on two of the eight reports in deference to the complainant's requests. He explained:

One of the two complainants that requested anonymity relates to a juvenile. Pursuant to KRS 61.878(1)(a), . . . we have redacted from this page all information that could personally identify the juvenile. The identity of a victim of sexual assault or rape is generally viewed as confidential and disclosure of such would constitute a clearly unwarranted invasion of personal privacy.

The second complainant who requested anonymity is not a juvenile and does not qualify for that protection. However, based on the privacy exemption cite above, we have redacted the record of any identifying information relating to the complainant.

UKPD denied access to the remainder of the incident reports on the basis of KRS 61.878(1)(h) and (l), as well as KRS 17.150(2), reciting the language of these provisions and advising that "[o]nce the investigations in these cases are complete, some or all of the records exempt from disclosure at this time may be open for inspection. "

Shortly thereafter, The Kentucky Kernel initiated this appeal seeking review of UKPD's partial denial of Ms. Hagedorn's request. By way of background, The Kernel explained:

Recently, UKPD has instituted a policy of allowing a complainant to choose whether he or she wants UKPD to withhold his or her identity from public disclosure. The complainant can check a box on the incident report which reads:

There is no explanation for why the complainant chooses to withhold his or her identity.

The Kernel premised its appeal on the requirement found at KRS 61.872(1) that "[a]ll public records shall be open for inspection by any person . . .," the legislative mandate found at KRS 61.871 that "free and open examination of public records is in the public interest and that the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed. . . .," and the statutorily assigned burden of proof found at KRS 61.882(3), providing that "the burden of proof shall be on the public agency. " Citing Hardin County Schools v. Foster, Ky., 40 S.W.3d 865, 868 (2001) for the proposition that "[t]he public agency that is the subject of an Open Records request has the burden of proving that the document sought fit within the exception to the Open Records Act, " 1 The Kernel maintained that "UKPD's overbroad interpretation of the privacy exemption stretches it much further than it has ever been interpreted by Kentucky courts or by the Attorney General."

In support, The Kernel cited 02-ORD-36, affirmed by the Kentucky Court of Appeals in Cape Publications d/b/a The Courier Journal v. The City of Louisville, Ky. App., No. 2002-CA-00165 MR (October 31, 2003), 2 in which this office recognized that personally identifiable information could be redacted from incident reports involving the narrow category of sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes, but expressly "continue[d] to ascribe to the view that [law enforcement agencies may not withhold the identities of all crime victims as a matter of policy" and expressed the view "that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27." (Emphasis in original.) Noting that none of the disputed incident reports involved sexual offenses, The Kernel asserted that the redactions on these reports were without legal basis.

The Kernel then proceeded to an analysis of the competing public and private interests implicated by disclosure, observing:

The fact that a citizen has become the victim of a crime is not a private matter, but a matter of serious public concern. The Attorney General has repeatedly taken the position that the identities of victims of crimes are not exempt from public inspection. 02-ORD-36, 99-ORD-27, 96-ORD-115, 94-ORD-144, OAG 80-144. "Secret police activity without some overriding justification is repugnant to the American system of government. When a citizen reports a crime to the police he may generally expect that the news media will learn of the report." OAG 80-144. Similarly,

94-ORD-144, citing OAG 80-144.

Conversely, The Kernel noted, the public interest in "monitor[ing] UKPD in the performance of its public duties" is weighty indeed. Relying on 93-ORD-13 for the proposition that "the public interest in police business outweighs any privacy interest of victims, offenders, or police personnel," and that "records of a police department which are referred to as . . . 'incident reports' [and contain the name of the victim] are open to public inspection, " The Kernel asserted:

The police investigation and incident report are the first steps in the legal process leading to prosecution of criminal behavior. The public has a significant interest in being fully informed about the nature and details of the crimes committed in their city and campus; and police efforts to deal with these crimes. Contrary to [UKPD's] assertions, it is precisely when the victims choose not to proceed or cooperate with law enforcement in the prosecution of the crime that the identity of the victim is most important. Otherwise, the public would have no way of determining whether UKPD is doing its job. UKPD's position in limiting access to the identifying information at the investigative stage would greatly inhibit the media and thus the public's ability to investigate and monitor police activity.

Therefore, The Kernel concluded, the public's interest in "scrutiniz[ing] the police to ensure they are complying with their statutory duties," is superior to the de minimus privacy interests of the victims in personal information contained in the incident reports.

Continuing, The Kernel argued that UKPD failed to satisfy its burden to demonstrate that the remainder of the police reports are exempt pursuant to KRS 61.878(1)(h) and KRS 17.150(2), commenting that UKPD made no showing of harm to the agency by disclosure of the records, as required by the former statute, and no justification for its refusal of inspection of the records with specificity, as required by the latter statute. In sum, The Kernel declared, "UKPD's unilateral decision to redact this information without explanation is both inappropriate and illegal." 3

In supplemental correspondence directed to this office following commencement of this appeal, UKPD elaborated on its position. Prefacing its arguments with the assertion that "there is no legitimate public purpose served by disclosing the name, address, and any other personal identifying information about a victim of a criminal incident on a university campus so that the press and the perpetrator can contact, harass, and intimidate a victim who does not desire public disclosure, " UKPD defended the policy, not as one of blanket redaction, but as one "that responds to the request of each individual victim at the time of an alleged criminal incident . . .," and one that was prompted by the "concern expressed by a victim to University Counsel." "These individuals are entitled to make that choice," UKPD asserted, "who better to make that determination than the victims."

UKPD confirmed that under the recently implemented University policy, UKPD responds to open records requests for "criminal complaint/offense reports," identified by date or report number, by providing a redacted copy of the first page of the report, masking the victim's home address, social security number, 4 and date of birth "because such disclosure would constitute a clearly unwarranted invasion of personal privacy. " Further, UKPD advised, the remainder of the report is withheld pursuant to KRS 61.878(1)(h) and KRS 17.150(2). From August 25, 2004, when the policy was implemented, to September 23, 2004, the day before UKPD submitted its supplemental response, UKPD indicated that it had generated 102 incident reports and that 53 of the victims requested anonymity. UKPD emphasized that all information relating to the reported offenses that is of legitimate public concern can be obtained through the daily campus crime log, posted on the Internet, and the annual report required by the Jeanne Clery Disclosure of Campus Security Policy and Campus Criminal Statistics Act of 1990, 20 U.S.C. § 1092(f) and the Michael Minger Act, KRS 164.948 to 164.9485. Neither act, UKPD hastened to note, requires disclosure of personal identifiers "because there is no public purpose served by the distribution of such personal and private information." Nevertheless, because the incident reports contain the data required to be reported, redacted copies are made available as "source documents . . . ." It was therefore UKPD's position that its "conduct of . . . is completely transparent to the press, the public, and the University community."

Relying on KRS 61.878(1)(a), 61.878(1)(h), 61.878(1)(i), and 61.878(1)(l), 5 as well as KRS 17.150(2), UKPD asserted that "[t]here exists no statutory duty for the UKPD to provide any portion of its Report Form in response to an Open Records request until the conclusion of the law enforcement action." In support, UKPD cited 00-ORD-144, 6 noting that the disputed records constitute the initial page of its investigative file, and "the first statement of the facts of the incident . . .," and the remaining page "the investigative file . . . ."

In support of it's reliance on the privacy exception, UKPD noted that the Attorney General's position on sexual offense victims and juvenile victims had been modified "without any change in the Open Records law . . . ., "and that "[n]either the Court, nor the Attorney General has closed the door entirely to redacting the identity of victims of other crimes." Amplifying on this position, UKPD commented:

The balancing test set forth by the Supreme Court must be analyzed when a privacy claim is raised. Kentucky Board of Examiners of Psychologists v. the Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 234 (1992). In this case, the Court acknowledged that the Open Records law does in fact reflect "a public interest in privacy" and that the exemption requires a case specific approach. Id. at 327. This opinion is consistent with the myriad of Attorney General opinions/orders that have ruled there can be no blanket policy of redaction. More importantly, the Supreme Court cautioned us to be mindful of the purpose of the Open Records law. The Open Records Law is to " subserve the public interest, not to satisfy the public's curiosity . . ." Board of Examiners at 328. [emphasis added]. The Supreme Court has also recognized the propriety of the agency to assert the personal privacy right of a person. Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994). In that case, the Court reviewed its decision in the Board of Examiners and reminded us again " the personal privacy exclusion was of sufficient importance to overcome the disclosure bias of the Act and that public interest and public curiosity were not always synonymous. " Beckham at 578-579.

(Emphasis added by UKPD.)

UKPD argued that " The Kentucky Kernel has not proffered any legitimate basis for the need to know the personal identifying information of victims who have made it very clear they do not want to be identified," and rejected The Kernel's assertion that full disclosure of the reports will enable the public to remain fully informed about the nature and details of crimes committed on campus, and police efforts to deal with these crimes. "In the balancing test required by the Supreme Court," UKPD maintained, " The Kentucky Kernel must demonstrate the public interest they seek to advance is a significant one . . . [and] is advanced with this information." In UKPD's view The Kernel "has not met this standard and it cannot meet this test." Given the availability of the details of criminal incidents on campus via the UKPD website, and the public's ability to monitor UKPD's conduct through the website, UKPD urged this office, in closing, to affirm its actions "so that victims will continue to report crimes and proceed with prosecution when the perpetrator is arrested and charged."

It is the decision of this office that UKPD did not meet its statutory burden of proof in partially denying Ms. Hagedorn's request for eight incident reports identified by case number, and that it violated the Open Records Act in the disposition of her request. In so holding, we are guided by a line of precedent extending back to 1976 and affirmed by the Kentucky Court of Appeals as recently as October 2003. We are unpersuaded by UKPD's argument that the availability of some of the information found in these incident reports on its separately mandated website, and through its separately mandated annual report, relieves it of its duties under the Open Records Act.

Resolution of the issue on appeal turns on this office's decision in 02-ORD-36. There, the Attorney General reaffirmed the longstanding position that a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure, but recognized, for the first time, a narrow exception for the victims of the sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes. 7 Of greatest importance to the question now before us is the language cited above by The Kentucky Kernel, and quoted with approval by the Kentucky Court of Appeals in Cape Publications, above, to wit, "We continue to ascribe to the view that [a law enforcement agency] may not withhold the identities of all crime victims as a matter of policy, and believe that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27." 02-ORD-36, p. 11, cited in Cape Publications, at 1.

In 96-ORD-115 this office held that although "a policy of categorical nondisclosure of the names of juvenile victims of crime . . . is inconsistent with the law," 8 law enforcement agencies may withhold identifying information relating to juvenile victims if they determine that the juvenile victims' privacy interests outweigh the public interest based on "a number of relevant factors, including the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the juvenile victim of further disclosure. " 96-ORD-115, p. 4 (holding that portions of record revealing identity of juvenile victim of drive-by shooting could be withheld) ; compare, 98-ORD-123 and 98-ORD-185 (holding that public agencies improperly withheld reports documenting accidental shootings of juveniles) . Some two years later, we extended this holding to all crime victims, observing that "it is incumbent on the agency advocating nondisclosure of records relating to an individual victim to satisfy its burden of proof that the privacy interests of that victim are superior to the public's interest in disclosure. " 99-ORD-27, p. 5 (holding that City of Louisville Division of Police improperly withheld records reflecting criminal victimization based on KRS 61.878(1)(a)). We concluded:

While the Attorney General has recognized, and continues to recognize, that victims of crime have a privacy interest in records which relate to them which may, in some instances, outweigh the public's interest in disclosure of those records, we are unwilling to abandon, in the absence of legislative or judicial repudiation of our position, twenty years of interpretation of the Open Records Law as it relates to records which reveal the identities of crime victims . . . .

99-ORD-27, p. 3.

In affirming this position in Cape Publications, above, the Kentucky Court of Appeals quoted from the circuit court opinion upholding 02-ORD-36:

[T]he Court agrees that police incident reports are matters of public interest and are public records. 93-ORD-42, citing OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with these statutory duties.

Cape Publications at 2. With reference to the nature of the information that is the subject of the requested disclosure, the Court of Appeals quoted extensively from Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 472 (1997), focusing on:

whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation. The Court had no difficulty concluding in Board of Examiners of Psychologists that information which would have revealed the identities of persons who had been sexually victimized should not be produced. In Zink [v. Commonwealth, Dept. of Workers' Claims, Ky. App., 902 S.W.2d 825 (1994)] the information sought did not implicate any significant public interest but did transgress, albeit not greatly, upon the privacy of the subject individuals.

Contrary to the views expressed by UKPD, the disputed incident reports " are matters of public interest and are public records. " Cape Publications, at 2 (emphasis added), and UKPD has a statutory duty to release them for public inspection in full and without redactions absent a particularized showing of a heightened privacy interest in the individual report predicated not on the expressed wishes of the complainant, but on the factors set forth in 96-ORD-115 and its progeny. Absent that particularized showing, the public has a legitimate interest in the incident reports and disclosure of the information they contain transgresses only minimally upon the privacy of the individuals who are the subjects of those reports.

As the statutorily authorized safety and security department for the University of Kentucky, UKPD is charged with the duty:

To preserve the peace, maintain order and prevent unlawful use of force or violence or other unlawful conduct on the campuses of [that] . . . institution[], and to protect all persons and property located thereon from injury, harm and damage;

To enforce, and to assist the officials of [that] . . . institution[] in the enforcement of, the lawful rules and regulations of said institution, and to assist and cooperate with other law enforcement agencies and officers.

KRS 164.995(1)(a) and (b). Here, The Kentucky Kernel postulates its right of access to unredacted copies of the eight incident reports on the public interest "in being fully informed about the nature and details of the crimes committed in their city and campus, and police efforts to deal with those crimes." The information sought in its totality therefore implicates a significant public interest that has been, and will continue to be, treated as superior to the privacy interests implicated absent a particularized showing of a heightened privacy interest. By way of example, we note that in 04-ORD-143 this office concluded that the Covington Police Department established that the privacy interests of the victim of a shooting were superior to the public's interest in disclosure of portions of the requested incident report and we affirmed partial nondisclosure of the disputed record. In that decision, we specifically stated that we found no violation in the partial redaction of information from the disputed report "under the facts of this case." 04-ORD-143, p. 7; citing Zink, at 828-829 and Hines v. Commonwealth, Department of Treasury, Ky. App., 41 S.W.3d 872, 876 (2001). Notwithstanding the fact that it is statutorily assigned the burden of proof, UKPD makes no such showing but instead relies on the presence of a check mark in a box on the incident report signifying the victim's preference for anonymity 9 and the availability of data relating to the crime on its website. This is not sufficient, in our view, to meet the agency's burden of proof.

Our review of the incident reports in dispute discloses that three of the eight reports involve property crimes, and the remainder involve disorderly conduct, trafficking in a controlled substance, menacing, and terroristic threatening. One of the two individuals who requested anonymity was the victim of criminal mischief and the other of menacing. UKPD made no attempt to articulate a heightened privacy interest on behalf of the victim of menacing, 10 who requested anonymity, but might have done so had it described the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on that victim of further disclosure. 11 We decline UKPD's invitation to shift that burden of proof to The Kentucky Kernel and to accept as a functional equivalent for the discharge of its duties under the Open Records Act the publication of raw data on a website and in an annual report. Having advanced no arguments in support of a heightened privacy interest justifying the redaction of the names and/or personal identifiers of the eight victims in the disputed incident reports, we find that UKPD failed to meet its burden of proof and therefore violated the Open Records Act in partially denying Ms. Hagedorn's request on the basis of KRS 61.878(1)(a).

Similarly, we find that UKPD did not meet its burden of proof in the invocation of KRS 61.878(1)(i), authorizing nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence that is intended to give notice of final action of a public agency. " As recently as July 13, 2004, the Attorney General reaffirmed the principle, dating back to OAG 77-102, that an incident report does not qualify for exclusion from public inspection under KRS 61.878(1)(i). Referencing a 1983 opinion in which we recognized that "while police incident reports are open to public inspection, case files are not open as long as the case is pending," 12 the Attorney General concluded that the Commerce Cabinet improperly withheld an incident report filed by a park ranger at Barren River State Park Resort following the suspicious death of a park visitor. 04-ORD-104; see also, OAG 80-210; OAG 89-76; OAG 91-50; 99-ORD-27; 02-ORD-36. In general, incident reports contain an objective report of fact. As such, they cannot be characterized as correspondence with a private individual. Nor can they be characterized as "a brief record, especially one written down to aid the memory" or "a tentative version, sketch, or outline of a formal and final written product." 97-ORD-183, p. 4 (defining the terms note and draft for purposes of analysis under KRS 61.878(1)(i)). See also 99-ORD-27 (holding that the incident reports are not "subjective expression[s] of opinion but [are] objective reports of fact" and not exempt from disclosure under KRS 61.878(1)(i)). Given the purpose for which the reports are created, and the caption which they bear, 13 we believe that the semantic distinction UKPD attempts to draw between the disputed records and incident reports generally is one of form rather than substance. We see no reason to depart from the cited decisions of this office relative to the impropriety of agency reliance on KRS 61.878(1)(i) to withhold all or any portion of these records.

Finally, we find that UKPD did not meet its burden of proof in the invocation of KRS 61.878(1)(h) and KRS 17.150(2). 14 The first of these provisions authorizes nondisclosure of:

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.

In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:

In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.

95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.

Implementing this legislative mandate, in University of Kentucky v. Courier Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:

This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.

University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.

Adopting the rule of strict construction employed by the Kentucky Supreme Court in University of Kentucky v. Courier Journal and Times Co., Ky., 830 S.W.2d 373 (1992), the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, 04-ORD-104 and authorities cited therein. A number of the decisions cited in 04-ORD-104 turn on the agencies' failure to justify denial of an open records request with proof of harm that would result from premature disclosure of the records in dispute. See, 95-ORD-29; 96-ORD-56; 96-ORD-155; 00-ORD-196; 02-ORD-179; 04-ORD-104; see also, 04-ORD-114. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test, including a showing of harm to the agency.

Assuming arguendo that the disputed incident reports qualify under the first two parts of this three part test, UKPD has not described any harm to it or its investigation that would result from disclosure of the incident report. Not even a bare claim is made in this regard. Nor has UKPD attempted to justify with specificity the refusal of inspection of these records under KRS 17.150(2). KRS 17.150(2) authorizes criminal justice agencies to withhold intelligence and investigative reports until prosecution is completed or a determination not to prosecute has been made. However, as The Kentucky Kernel correctly notes, KRS 17.150(3) expressly provides:

When a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.

(Emphasis added.) Again, assuming for the sake of argument that the disputed incident reports qualify as investigative reports, UKPD has made no attempt to justify its denial with specificity. The record is entirely silent on this point. UKPD has failed to meet its burden under KRS 17.150(3) relative to invocation of KRS 17.150(2), as well as its burden under KRS 61.880(2)(c) relative to its invocation of KRS 61.878(1)(h). Accordingly, we find that UKPD violated the Open Records Act in partially denying Ms. Hagedorn's request for eight incident reports identified by case number.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

Jon L. FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202

Barbara W. JonesActing General CounselUniversity of KentuckyOffice of Legal Counsel206 Gillis BuildingLexington, KY 40506-0033

Emily HagedornEditor in Chief The Kentucky Kernel University of Kentucky035 Grehan BuildingLexington, KY 40506

Frank ButlerOfficial Records Custodian University of Kentucky203 Gillis BuildingLexington, KY 40506-0033

Footnotes

Footnotes

1 For purposes of Attorney General review of an open records appeal, KRS 61.880(2)(c) provides that "[t]he burden of proof in sustaining [denial of an open records request] shall rest with the agency."